It's rare my sports obsession crosses my interest in law, and rarer still when it involves blog culture, but we had the perfect storm this weekend.
Colin Cowherd is a nationally syndicated radio host for ESPN Radio. And he decided it would be funny if he launched a Denial of Service attack on The Big Lead, a blog critical of ESPN (like there's a sports blog NOT critical of ESPN). OK, that was generally a petty thing to do, but it also may have been illegal. For the lowdown from smarter people than me, click here.
For deadspin's less-than-politic take, click here. Kissing Suzy Kolber has been on fire as well. They have taken to calling Cowherd "schrutebag". You honestly don't want to know what that means.*
Cowherd isn't a stranger to internet controversy. He's already stolen the M-Zone's material verbatim and passed it off as his own. Which sounds like plagarism to me, but probably he's off the legal hook because it wasn't written. I don't know the law.
OK, so back to the current controversy. What is the best analogy to Cowherd's behavior? The Big Lead is a business and Cowherd used public airwaves to orchestrate an attack on that business out of pure malice. I don't think the incitement analogy holds, considering it's not an incitement to cause physical harm, it's just organizing people to disrupt a business. I think the closest analogy is that of vandalism, only he used the public airwaves to do it. And while I'm not sure if Cowherd's actions were illegal, they certainly were the actions of a schrutebag. I'm not sure it would rise to the level or a tort, because I'm having a problem getting over the conceptual hump that he owed the blog a duty of care. If there is a duty, we have breach, causation, and harm and we have the makings of a tort. But is being a jackass really a tort?
And is his speech Constitutionally protected? I don't think so. He's using public airwaves, but he's using ESPN's transmitter. They are selling his speech, so does that make it commercial speech? Even if it doesn't, I'd analogize this to the guy talking on the street corner, only with a really big megaphone. He's allowed to talk, but he can't say whatever the hell he wants, and he can't encourage people to engage in unlawful activity (if the conduct was indeed unlawful). I'll skip the whole content-neutral analysis.
Just for Cowherd being a jerk, I've bookmarked The Big Lead.
*Ed Note- I'm not kidding. I have a track record here when I tell you that you don't want to know what something means. Remember "mung"? This isn't as bad, but it's just fun to say. Colin Cowherd is a schrutebag.
2 comments:
But what about an intentional tort? You don't have to owe anyone a duty for intentional torts. BTW, the MZone kicks serious ass. I read it everyday.
You have a point. Cowherd's actions were intentional, but were they likely to bring about this result? I mean, who the hell listens to the Herd anyway?
And the M-Zone is almost enough to make me root for Michigan. Almost.
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